So here’s the problem.
I agree with Sharpe on gerrymandering, but didn’t bring it up because I’ve seen some very smart election law folks opine that it’s fairly likely that the gerrymandering elements of HR1 won’t pass SCOTUS challenge on the Article I, Section 4, Clause 1 bit on the Constitution. Which is a tough problem to solve for.
But most of what both bills – HR1 and the John Lewis election reform bill – in the House do is to address before-the-fact voter suppression. Which is the enactment of laws in the manner that Georgia has done that appear aimed at making it more difficult for minorities to vote. And preventing that from happening is a very noble undertaking for sure. Those laws are racist and odious and anti-democracy.
But also as Sharpe points out…the data that we have shows that if the goal of such laws is to prevent minorities from voting, they pretty much don’t work out that way. Even if you set aside 2008 and 2012, the (admittedly small sample size) data we have seems to suggest that attempts to make it harder for folks within certain demographic groups to vote seems to make them want to vote all the more.
So yeah. It’s definitely good to try to do something at the federal level to combat shitty, racist voting regulations like the ones that Georgia are trying to enact. But to be honest? Evidence suggests that laws like that may not create a material change in voter behavior such that it will be enough to flip election results.
And so but now there’s the third thing: voter suppression/election vote count hijinks after the fact. This is the one that should scare everyone to death, frankly. Because most state legislatures grant pretty extraordinary powers to rule on and enact process rules on vote counting to the person in the state whose office oversees these things (usually a state Secretary of State). And so it’s easy to imagine a super-Trumpy state SoS who realizes “Hey, I can fuck with our election count procedures and I’m not only not gonna go to jail for it, I’m going to be protected by the white supremacist Republican Party and become a rising star within it.”
And that after-the-fact vote counting stuff is what I see chilling folks who do election law to their bones, because it’s also easy to imagine SCOTUS as currently constituted refusing to hear equal protection challenges because they’d be unwilling to step on the Constitutional clause cited above.
And so now here’s the real kicker: there’s absolutely nothing in HR 1 or the John Lewis election law act that would do a damned thing about after-the-fact vote counting/voter suppression shenanigans. Nothing. It’s simply not addressed.
And so here is the very shitty thing that confronts Democrats right now. Are you willing to nuke the filibuster to try to pass election laws that may not materially affect the outcome of election results and which don’t address at all the biggest threat to the sanctity of our democratic government…but may simply be the right thing to do altruistically? Are you willing to do it in the face of control of the Senate flipping back to Republicans in 2022 or 2024?
It’s a shit dilemma, obviously.
But if you’re out there thinking “If we don’t pass HR-1, we may never have fair elections again…” Boy howdy do I have some even shittier news for you.
